APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert Pigman, Special Judge
Cause No. 82D03-9712-CT-04354

April 5, 2002

SHEPARD, Chief Justice.

The question is whether a party who unavailingly challenges a prospective juror for
cause and then passes up the chance to use a peremptory to strike
that juror may later seek retrial based on the courts failure to grant
the challenge for cause. Indianas historic reply, like that of a good
many other jurisdictions, has been no. After examining the available alternative policies,
we conclude that the present rule probably does the most to foster fair
trials.

Facts and Procedural History

On October 3, 1996, six-year-old Kristin Alexander fell off the monkey bars and
fractured her arm while playing at the Vogel Elementary School playground in Evansville.
Kristin and her mother, Nina Merritt (collectively Merritt), sued Evansville-Vanderburgh School Corporation
(EVSC) claiming negligence for failure to maintain an adequate protective surface on the
playground to prevent such foreseeable injuries. Tom Bennett, Vogels principal, served as
EVSCs representative at trial and testified on its behalf.

During voir dire, Merritt challenged three prospective jurors (Cynthia Carneal, Susan Harp, and
Sharon Kennedy) for cause because they had some acquaintance with Bennett and/or worked
for the school system. Each had said during earlier examination that she
could reach an impartial decision in the case. Apparently satisfied that this
was true, the trial judge denied all three challenges.

Merritt used two of her three available peremptories to strike Carneal and Kennedy.
She also struck Steven Bender, who expressed general concern about excessive litigation
but said he could be fair in deciding the case. Harp served
on the jury as the foreperson. The jury returned a verdict in
favor of EVSC.

On appeal, Merritt argued that the trial court erred by not dismissing Carneal
and Harp for cause based on their employment with EVSC. EVSC argued
that Merritt waived this claim by failing to use a peremptory strike to
exclude Harp. A divided Court of Appeals addressed the claim on the
merits and reversed, finding Harp and Carneal impliedly biased and/or biased as a
matter of law because they were employed by the defendant, EVSC. Merritt
v. Evansville-Vanderburgh Sch. Corp., 735 N.E.2d 269, 270, 272 (Ind. Ct. App. 2000).
We granted transfer. 753 N.E.2d 5 (Ind. 2001).

The threshold question here is whether a party can pass up the opportunity
to remove an incompetent
See footnote juror and then assert error on appeal. Because
we find the claim of error waived, we do not address whether the
trial court erred by not excusing Carneal and Harp.

Challenges for Cause: The Exhaustion Rule

The trial court has discretion to grant or deny challenges for cause.
Woolston v. State, 453 N.E.2d 965 (Ind. 1983). We will sustain the
decision on appeal unless it is illogical or arbitrary. Id. When
a juror serves who should have been removed for cause, the complaining party
is entitled to a new trial, absent waiver. Haak v. State, 417
N.E.2d 321 (Ind. 1981)

As for when such a complaining party is entitled to seek a new
trial, a claim of error arising from denial of a challenge for cause
is waived unless the appellant used any remaining peremptory challenges to remove the
challenged juror or jurors. Indianas long-standing rule, which the Court of Appeals
acknowledged, is also widely recognized in other states.
See footnote

As we said in
Robinson v. State, 453 N.E.2d 280 (Ind. 1983), Our
law on this issue is well settled. We have consistently held that
to preserve any error the defendant bears the burden of demonstrating that at
the time she challenged the jurors for cause, she had exhausted her peremptory
challenges.
See footnote
Id. at 282 (emphasis in original) (citing, inter alia, Rock v.
State, 185 Ind. 51, 110 N.E. 212 (1915)). Eventual use of all
peremptory challenges is therefore not enough to satisfy the exhaustion requirement.

Dissenting in the present case, Chief Judge Sharpnack explained the rationale for this
approach: [W]here a trial court may have erred in denying a
partys challenge for cause, and the party can cure such error by peremptorily
removing the apparently biased venireperson, the party should do so in order to
ensure a fair trial and an efficient resolution of the case. Merritt,
735 N.E.2d at 272 (Sharpnack, C.J., dissenting) (citation omitted).
See footnote

Peremptory strikes permit litigants to assist the government in the selection of an
impartial trier of fact.
Edmonson v. Leesville Concrete Co., 500 U.S. 614,
620 (1991). In Ross v. Oklahoma, 487 U.S. 81 (1988), the U.S.
Supreme Court upheld Oklahomas exhaustion requirement against a federal constitutional challenge, describing peremptory
strikes as a means to achieve the end of an impartial jury rather
than a right of constitutional dimension. Id. at 88. To obtain
reversal under Oklahoma law, the appellant must properly preserve the right to challenge
the courts failure to remove a biased juror for cause, and the biased
juror must actually serve. Id. at 85. The Court found nothing
arbitrary or irrational about [an exhaustion] requirement, which subordinates the absolute freedom to
use a peremptory challenge as one wishes to the goal of empaneling an
impartial jury. Id. at 90.
See footnote

Likewise, Justices Scalia and Kennedy recently described the exhaustion rule as consistent with
the history of peremptory challenges in criminal cases:
[I]t may well be regarded as one of the very purposes of peremptory
challenges to enable the defendant to correct judicial error on the point [of
juror bias]. Indeed, that
must have been one of their purposes in
earlier years, when there was no appeal from a criminal convictionso that if
the defendant did not correct the error by using one of his peremptories,
the error would not be corrected at all.

The rule upheld by the U.S. Supreme Court in Ross is more stringent
than our own practice. In Indiana, it is enough to show that
an objectionable juror served because a party was forced to use a peremptory
strike to cure an erroneous denial of a challenge for cause. The
appellant need not prove that the objectionable juror was incompetent, i.e., one who
should have been excused for cause. See Woolston, 453 N.E.2d at 968.
See footnote

It is sound policy to require litigants to help themselves by using their
peremptory challenges to ensure an impartial jury. Permitting them to seek a
new trial when they had a remedial tool available and chose not to
use it could lead to harsh results.

We can contemplate ready examples. Assume a class C felony battery case,
where the criminal defendant has ten peremptory challenges to use in selecting a
twelve-person jury. After voir dire of the first group of prospective jurors,
the hypothetical defendant challenges one juror for cause, claiming, say, bias against arrestees.
After that challenge is erroneously denied, the defendant uses all ten peremptory
challenges to strike ten other venire members for any of the infinite variety
of reasons people use peremptories, from readily apparent grounds to the utterly inchoate.
The defendant seeks a new trial, citing the generally applicable rule that
participation of an incompetent juror in a verdict requires retrial.See footnote

While this bright-line rule of reversal is widely embraced, in this example it
would create unwarranted costs and inefficiencies for the parties, the court system, and
citizen jurors. The exhaustion rule solves this problem by preventing this defendant
from complaining on appeal that service by the challenged juror denied him a
fair trial. This seems like an eminently fair and more sensible result.

We could avoid retrial in this example by adopting a different rule, such
as a case-sensitive analysis of whether the defendant used his peremptory challenges reasonably,
or whether that jurors bias resulted in actual, not just potential, prejudice to
the defendant.

Such rules would, of course, be slippery slopes. And it seems unlikely
the slope would favor persons who deem themselves deprived of a fair trial
by the presence of an incompetent juror.

Surely such parties are better off with a clear and predictable road map:
you must use any available peremptories to correct erroneous denials of challenges
for cause. If on appeal you then prove both the erroneous denial
and that you were unable to strike another objectionable juror because you exhausted
your peremptories, you are entitled to a new trial, full stop.See footnote

The object to be attained is an impartial jury, and while the right
of peremptory challenge is an absolute one, it is not, we think, so
far so that it may be exercised under all conditions.
McDonald v.
State, 172 Ind. 393, 400, 88 N.E. 673, 676 (1909).
See footnote We conclude
that Indianas moderate position-- requiring an appellant to show that an incompetent
or
objectionable juror actually served because she used up her peremptories to strike a
juror she challenged for cause who should have been, but was not, excused
by the court--represents the best balancing of the various private and public interests
at stake.

Applying the Rule

The exhaustion rule is fatal to Merritts claim. She had sufficient peremptory
challenges to strike Carneal and Harp when the trial judge denied her challenges
for cause. Had she used peremptory strikes to remove those two, then
made a record of her desire and inability to strike both Kennedy and
Bender as well, her claim that the trial court erred in denying the
challenges for cause would have been available for an appellate decision on the
merits. She did not do so, and the claim is waived.

Conclusion

We affirm the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Footnote: We use the term incompetent to describe a juror who is removable
for cause. We use objectionable for a juror who is not removable
for cause, but whom a party wishes to strike. Footnote:
See State v. DiFrisco, 645 A.2d 734, 753 n.1 (N.J. 1994), cert.
denied, 516 U.S. 1129 (1996) (citing case law from twenty-two other states, including
Indiana, that require the use of peremptories to correct erroneous denials of challenges
for cause). Footnote: Of course, trial court judges take various approaches to jury selection and
the timing of challenges for cause and use of peremptories. Some judges
require parties to challenge or strike members of a given panel and accept
those jurors who remain, then move on to voir dire a second panel
if need be. Other judges permit lawyers to go back and strike
jurors from panel one even after a second or third group has been
interviewed. We take the language from
Robinson, that a peremptory must be
used at the time she challenged the jurors for cause, to mean that
the party must use a peremptory against the challenged juror at whatever moments
the trial judge regularly permits peremptory strikes before jury selection is complete.
Footnote: Note that for similar reasons Indiana requires appellants to exhaust their peremptory
challenges as a prerequisite to appealing denial of a motion for change of
venue.
Grooms v. State, 269 Ind. 212, 216, 379 N.E.2d 458, 461
(1978), cert. denied, 439 U.S. 1131 (1979).Footnote: The U.S. Supreme Court recently said in
United States v. Martinez-Salazar, 528
U.S. 304 (2000), that under federal law a defendant is not required to
use a peremptory strike to preserve a challenge-for-cause denial claim (although if the
defendant chooses to do so, he is not entitled to relief unless a
biased juror served). Id. at 307. As Judge Richard Posner observed
in Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), this
put[s] the litigant in a heads-I-win-tails-you-lose position: if he wins a jury
verdict, he can pocket his victory, and if he loses, he can get
a new trial. Id. at 623. Footnote: The various state positions on this issue occupy points along a continuum.
For example, New Jersey, like Oklahoma, requires an appellant to show that
an
incompetent juror actually served to prevail on a claim of wrongful denial
of a challenge for cause. See DiFrisco, 645 A.2d at 753.
Arkansas, Florida, and Texas all follow a more lenient approach similar to Indianas,
and require only that the appellant show that an objectionable juror served because
he used a peremptory strike to correct an erroneous denial of a for-cause
challenge. See Andrews v. State, 675 S.W.2d 636, 638 (Ark. 1984);
Gootee v. Clevinger, 778 So. 2d 1005, 1009-10 (Fla. Dist. Ct. App. 2000),
review denied, 794 So. 2d 603 (Fla. 2001); Johnson v. State, 42 S.W.3d
1, 7 (Tex. Crim. App. 2001). Colorado is even more generous, requiring
only that the appellant show the use of a peremptory strike to correct
an erroneous denial of a challenge for cause and exhaustion of all available
peremptories. See People v. Macrander, 828 P.2d 234, 244 (Colo. 1992).
Footnote:
See, e.g., Block v. State, 100 Ind. 357, 364-65 (Ind. 1885); Haak
v. State, 417 N.E.2d 321, 324 (Ind. 1981); Berkman v. State, 459 N.E.2d
44, 46 (Ind. Ct. App. 1984).Footnote: For example, a claim is preserved where a party uses her last
peremptory challenge to cure a trial courts erroneous denial of a challenge for
cause and establishes for the record that she would have used that peremptory
to strike another juror.
See Woolston, 453 N.E.2d at 968 (prejudice not
shown where defendant did not desire to challenge only juror sworn after last
peremptory challenge was used to strike another juror for whom challenge for cause
denied).
Footnote:
It is worth noting that the exhaustion rule is not the only
limitation on peremptory challenges. Trial courts may reasonably regulate the manner of
exercising the right of peremptory challenges, such as by requiring the opposing parties
to exercise challenges simultaneously and independently. Hart v. State, 265 Ind. 145,
153, 352 N.E.2d 712, 717 (1976). In civil cases all named plaintiffs
may be collectively limited to the number of peremptory challenges allowed by statute
to each party, and the same is true for all joined defendants.
See Christensen v. Sears, Roebuck & Co., 565 N.E.2d 1103, 1105-07 (Ind. Ct.
App. 1991) (citing Snodgrass v. Hunt, 15 Ind. 274 (1860)). Similarly, criminal
defendants tried jointly may collectively receive only the same number of challenges that
defendants tried individually would receive. See Lund v. State, 264 Ind. 428,
433, 345 N.E.2d 826, 829 (1976). Like the exhaustion rule, each of
these limitations effectively reduces the number of available peremptory challenges.